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finding a genuine issue of material fact as to negligent hiring where plaintiff adduced evidence that, inter alia , the entity defendant "failed to further evaluate" one of its employees "before rehiring him after new evaluations revealed [certain] propensities"
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99 Civ. 3787 (RWS) —
March 14, 2001
GEORGE ZELMA, ESQ. Attorney for Plaintiff New York, N.Y. 10106
LANDMAN CORSI BALLAINE FORD Attorney for Defendants Metropolitan Transportation Authority and PO Robby Anderson New York, N.Y. 10271-0079 By: MELANIE K. SUHRADA, ESQ. Of Counsel SMITH MAZURE DIRECTOR WILKINS YOUNG YAGERMAN TARALLO
Attorney for Defendant Chris Rocket New York, N.Y. 10038 By: ROBERT P. SIEGEL, ESQ. Of Counsel PHILIP J. DINHOFER, ESQ. Attorney for Third-Party Plaintiff New York, N.Y. 10123
HOGUET NEWMAN REGAL Attorney for Third-Party Defendants New York, N.Y. 10016 By: MELISSA L. WEISS, ESQ. Of Counsel
OPINION
Defendants the Metropolitan Transportation Authority (the "MTA") and Police Officer Robby Anderson ("Anderson") move for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Defendant Police Officer Christopher J. Rocket ("Rocket") has also moved for summary judgment. Plaintiff Preston Kirk ("Kirk") opposes the motions and cross-moves for leave to amend the complaint. For the reasons set forth below, the motions for summary judgment will be granted in part and denied in part, and leave to amend is granted in part.
The parties persist in alternating the spelling of this defendant's name, between "Rockett" and "Rocket." For the sake of consistency, this defendant will henceforth be referred to as he is named in the amended complaint, as "Rocket."
The Parties During all times relevant to this action, Kirk was employed as a supervisor in the Mechanical Department of the Metro-North Railroad at Grand Central Station in New York City.
During times relevant to this action, the MTA was a New York public authority which owned Metro-North Commuter Railroad Company, a subsidiary corporation which provides commuter rail service out of Grand Central Terminal in New York City to outlying areas in New York and Connecticut.
During all relevant times, Anderson and Rocket were employed as state sanctioned police officers with the MTA and were working at Grand Central Terminal in New York City. Since the incident at issue, Rocket has been promoted to the rank of sergeant.
Background The amended complaint alleges that Kirk's constitutional rights were violated when, on July 6, 1998, Rocket and Anderson injured him during the course of an unfounded arrest at Grand Central Station.
Anderson and the MTA filed the instant motion on November 24, 2000. Rocket filed his summary judgment motion on November 29, 2000. Kirk opposed the motions and cross-moved for leave to amend the complaint on January 11, 2001. Anderson and the MTA filed a reply brief and opposition to Kirk's motion to amend on January 29 and February 2, 2001. The motion was deemed fully submitted on February 14, 2001.
Facts
On July 6, 1998, Officer Anderson received a report of a dispute at Zaro's Bread Shop, in the vicinity of Track 19 at Grand Central Terminal. (MTA Exs. N at 52-56 (Anderson), R at 195 (Rocket).) Officer Anderson notified the MTA Police communications department by radio and proceeded to Zaro's.
References to alphabetically ordered exhibits attached to the affidavit of Melanie Suhrada ("Suhrada Aff.") in support of Anderson and the MTA's summary judgment motion will be referred to as "Def. Ex. __." References to numerically ordered exhibits attached to the Declaration of George Zelma ("Zelma Decl.") in opposition to the defendants' summary judgment motion and in support of Kirk's cross-motion to amend will henceforth be cited as "Pltf. Ex. __." Kirk's affidavit will be cited as "Kirk Aff.¶__." The affidavit of William C. Houston and exhibits attached thereto will be cited as "Houston Aff. ¶__." References to the affidavit of Thomas Henry and Peter DeCarlo will be to the "Henry Aff." and "DeCarlo Aff," respectively. Exhibits attached to the Declaration of Robert Siegel in support of Rocket's summary judgment motion will be cited as "Rocket Ex. __."
Meanwhile, the agitated Zaro's manager, Alasshne Seck ("Seck"), was returning toward Zaro's from an area behind the train gates in the vicinity of Tracks 11 or 14 and 15. (MTA Ex. R at 206 (Rocket); Rocket Ex. 14 at 31 (Rocket).) Rocket assumed that Seck had followed the suspect from Zaro's toward Track 11 or 14 and 15 after the dispute, although he did not question Seck on this point. (MTA Ex. R at 207 (Rocket).) Seck described the incident to the officers while they stood in the vicinity of Track 16. (MTA Ex. R at 263 (Rocket).) Seck reported that an individual who had become agitated over a stale muffin had threatened to return to the shop with a gun to shoot one of the employees later that day, although no weapon had been displayed. (MTA Exs. N at 55-56 (Anderson), 62, R at 21, 317 (Rocket), Q at 33 (Harten).) As Officers Harten and Rocket arrived, Seck described the suspect to Anderson as a black male Metro-North employee, approximately six feet four inches tall, possibly between thirty-five and forty years old, wearing blue jeans, a tan hat, and an orange Metro-North vest. (MTA Exs. N at 58-71 (Anderson), R at 211-14 (Rocket).) This description fit many individuals who were present in the area. (MTA Ex. N at 80 (Anderson).)
As he had approached Zaro's in response to the report moments earlier, Rocket had seen Preston Kirk, a Metro-North employee, walking down the steps toward Track 21 from the direction of Zaro's, around Track 19. (MTA Ex. R at 197-205.) Although Track 21 was in the opposite direction from Zaro's than tracks 11 and 14, where Seck had gone immediately after the dispute, Rocket believed Kirk to be the suspect based upon the general physical description Seck had provided. (MTA Ex. R at 210, 226-232 (Rocket).) Rocket notified the other officers of his suspicion and proceeded with them to the Mechanical Desk at Track 21 in search of Kirk. (MTA Exs. N at 73-76 (Anderson); R at 32 (Rocket).)
It is undisputed that Kirk had no involvement in the Zaro's incident and that another Metro-North employee was subsequently arrested and charged in connection with it. (MTA Exs. N at 87 (Anderson), R at 33 (Rocket).)
The Mechanical Desk is a small office on track level at the foot of a metal staircase that is not open to the public. (MTA Exs. N at 78, 91 (Anderson), R at 277 (Rocket), Q at 134-35 (Harten); Houston Aff. ¶ 4; Kirk Aff. ¶ 6.) The area in which the office is located is filled with noise from construction and trains operating on the tracks. (MTA Exs. N at 99, 104 (Anderson), Q at 43-44 (Harten).) Kirk and two other Metro-North Mechanical Division supervisors, Tim O'Shea and Tom Henry, were seated in the Mechanical Desk when Rocket and the other officers arrived. (MTA Exs. N at 94 (Anderson), X at 291 (Kirk); Henry Aff. ¶ 2.) At the time Rocket arrived at the Mechanical Desk, he did not believe he had a sufficient foundation on which to handcuff or arrest Kirk for the Zaro's incident. (MTA Ex. R at 227.)
Standing in the doorway of the office with Officers Anderson and Harten behind him, Rocket asked Kirk to come to the door to speak with him. Receiving no response, he repeated the request. (MTA Exs. N at 97-99 (Anderson), R at 235 (Rocket).) Kirk asked why and walked to the door. (MTA Exs. N at 102, 105 (Anderson), X at 308-09 (Kirk), Y at 39 (Kirk); Kirk Aff. ¶ 11.) Rocket told him that he fit the description of a suspect who had threatened the Zaro's manager in an incident involving a weapon. (Rocket Ex. 14 at 33 (Rocket); MTA Exs. N at 93 (Anderson), R at 367, 369 (Rocket), X at 297, 307 (Kirk); Kirk Aff. ¶¶ 9-10.)
What happened next is the subject of considerable dispute. Officer Rocket alleges that he placed his hand on Kirk's arm before attempting to pat down his waist area for weapons, but that Kirk pulled his hand away. (Rocket Exs. 14 at 40-42; Ex. 21 (Rocket).) At other times, Rocket has accused Kirk of "brushing" Rocket's hand away during his attempted pat-down. (MTA Ex. R at 387-90.)
In contrast, Kirk alleges that, without any warning or provocation, Rocket simply struck his abdomen and side in a sharp jabbing motion, causing Kirk to step back in self-defense. (MTA Ex. X at 347, 370, 885 (Kirk), MTA Ex. T at 144-45 (Wade).)
Supervisor O'Shea remembers that Rocket "grabbed" Kirk and "kind of like manhandled him," leading Kirk to "pull his arm from the cop. . . ." (Kirk Ex. 19 at 3 (O'Shea).) Kirk and Thomas Henry, one of the Metro-North supervisor witnesses to the arrest, allege that Rocket then slammed him against the wall. (MTA Ex. X at 350; Henry Aff. ¶¶ 6, 7). The parties agree that Rocket then handcuffed Kirk with his hands behind his back, and Rocket patted down Kirk's waist. (Kirk Ex. 19 at 4 (O'Shea).)
After handcuffing him, Rocket lead Kirk up the metal stairs to the concourse level from behind, with Anderson following. Kirk and Henry allege that Rocket "dragged" or "pushed" Kirk up the stairs from behind. (MTA Ex. X at 369, 888; Henry Aff. ¶ 10; Kirk Aff. ¶ 20.) O'Shea and Henry, still at the Mechanical Desk, observed Kirk misstep and start to fall backwards, and saw Rocket, who had one hand on Kirk's handcuffs, place his other hand on Kirk's back to right him as they climbed the stairs. (Kirk Ex. 19; Henry Aff. ¶ 10.)
Rocket, Anderson, and Harten, on the other hand, allege that Kirk, while handcuffed with his hands behind his back walking up a metal staircase, turned fully around so that he was facing Rocket and "chest-bumped" him, causing Rocket to injure his hand as he fell backward one or two stairs. (MTA Ex. N at 167-73 (Anderson); Kirk Ex. 15 at 13 (Anderson); MTA Ex. Q at 99-109 (Harten).) However, despite this alleged injury, Rocket did not remark on his pain, admonish Kirk, or take any different precautions before resuming his walk up the stairs. (MTA Exs. N at 191-72, 174-76 (Anderson); Q at 90-91, 113-14, 118-19 (Harten); R at 467, 473, 479, 491 (Rocket).) Nor did either of the other officers make any comment or change their behavior as a result of the alleged "chest-bumping." (Id.)
Plaintiff's accident reconstruction expert, after visiting the Mechanical Desk, opines that Kirk could not have turned around and chest-bumped Rocket at all given the narrow breadth of the staircase, and could not have done so with sufficient force to knock him down stairs without himself falling down on the staircase on top of Rocket. (Houston Aff. Ex. B.) In fact, when Rocket visited a physician three days after Kirk's arrest, he reported that he had injured his hand "running after someone and tripped down some stairs and struck his hand against a railing and pulled his thumb out against the stairs as he fell down." (Kirk Ex. 22; MTA Ex. W at 10 (DelSalvio).
Kirk was taken to Zaro's, where Seck confirmed that Kirk was not the person who had been involved in the prior incident. (MTA Exs. R at 501 (Rocket); X at 402 (Kirk).) Kirk asked Rocket, "what are you going to do now," to which he replied words to the effect of "you're still under arrest." (MTA Exs. R at 502-03 (Rocket); X at 405 (Kirk) ("we're going to lock you up anyway.").)
Rocket then took Kirk to the police base at Grand Central Terminal, where he was placed in a cell. Rocket told officers at the base that Kirk had been arrested because he resembled the person involved in the Zaro's incident. (Kirk Ex. 16 at 4-5 (Sgt. Taylor).)
At Kirk's request, his supervisor, Peter DeCarlo ("DeCarlo") was contacted and visited him at the police base. DeCarlo observed that Kirk's hands were swollen and indented at the wrists, and visibly bleeding. (DeCarlo Aff. ¶ 9.) In addition, DeCarlo noted that Kirk had difficulty standing to speak. (Id. ¶ 8.) Both DeCarlo and Kirk asked what Kirk was being charged with, but were told only, "we're working on it." (Id. ¶¶ 5, 14, 15; MTA Ex. X at 409.)
When Kirk requested medical treatment, Anderson called an ambulance. Kirk was handcuffed to a gurney and transported through Grand Central Station to Bellevue Hospital. (MTA Exs. N at 295-96, X at 455-57.) Once at Bellevue, Kirk was placed in a jail cell and handcuffed to the bottom rung of the chair on which he was seated, and remained in cuffs while being examined by a physician, who documented the wrist injuries DeCarlo had noted, in addition to soreness in Kirk's shoulder, but diagnosed "no serious injuries." (MTA Exs. N at 315 (Anderson), X at 463 (Kirk); Kirk Ex. 28.)
After returning to the Grand Central police base from Bellevue, Kirk was released at approximately 10:30 pm with a Desk Appearance Ticket containing the single charge of "resisting arrest." (Kirk Ex. 20; MTA Ex. X at 467 (Kirk); Zelma Decl. ¶ 4.)
Once released, Kirk went to Chris Hospital Emergency Room, complaining of abrasions on his arms and pain in his shoulder. (Kirk Exs. 28, 29; MTA Ex. X at 922, Kirk Aff. ¶ 48.)
Kirk voluntarily testified before the MTA's Internal Affairs Division ("IAD") during its investigation of Rocket's actions of July 6, 1998. As it had done in a prior investigation of Rocket involving an alleged "chest-bumping" by a civilian, IAD exonerated Rocket in what Kirk alleges was a "sham" or "whitewash" investigation geared toward clearing officers rather than ascertaining the truth.
On September 16, 1998, Kirk served a timely Notice of Claim on the MTA reflecting that the "nature of the claim" against the MTA and "their employees, agents and/or servants" included "assault, false arrest, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, physical bodily and emotional injuries and pain and suffering, negligent hiring and retention and Violation of Section 1983 Federal Civil Rights." (Rocket Ex. A.) A second notice of claim naming Rocket and Anderson as defendants and adding a malicious prosecution claim was served on May 3, 1999. (Rocket Ex. B.)
Approximately ten days later, Kirk was notified to appear to face charges in the New York County Criminal Court — not only for resisting arrest, but also for third-degree assault. (Zelma Decl. ¶ 9.) Kirk declined the prosecutor's offer of an adjournment in contemplation of dismissal ("ACD") and had to appear in court several times. (Id. ¶ 9-14.) Finally, on the trial date of March 10, 1999, the prosecution dismissed the charges on the grounds that it could not prove them beyond a reasonable doubt. (MTA Ex. DD.)
Kirk filed the instant action in New York State Supreme Court on April 29, 1999, and the defendants removed it to this Court on May 24, 1999. The amended complaint was filed on November 10, 1999.
Discussion
I. Summary Judgment
A. Legal Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N.Y. 1995). If, when viewing the evidence produced in the light most favorable to the nonmovant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law.
"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than "metaphysical doubt." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
B. The Notice of Claims Was Sufficient
Rocket seeks summary judgment on the ground that the September 16, 1998 Notice of Claim was insufficient to put Rocket on notice as to any claim likely to be filed against him because he was not personally named, and because the Notice of Claim did not include several causes of action later brought before this Court.
Specifically, Rocket claims that the punitive damages, battery, and false imprisonment claims are time-barred because they were not enumerated in a Notice of Claim prior to October 4, 1998. New York General Municipal Law § 50-e and Public Authorities Law § 1276 require that notice of tort claims must be filed within 90 days after the claim arises. N.Y. Gen. Mun. L. § 50-e1(a) (McKinney 1998); Pub. Auth. L. § 1276(2) (McKinney 1998).
However, because the purpose of a Notice of Claim is to allow the city to investigate complaints adequately, it is the nature of the claim and the theory of liability, rather than the specifically enumerated cause of action, that is determinative pursuant to §§ 50-e and 1276. See Hemrie v. City of New York, No. 96 Civ. 213(DLC), 2000 WL 1234594, *2 (S.D.N.Y. Aug. 31, 2000) (citing Fincher v. County of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997).
A cause of action for battery is consistent with a theory of "bodily . . . injuries" as set forth in the September 18, 1998 Notice of Claim. Moreover, as discussed in more detail below, because the false arrest has the same elements as false imprisonment, the false arrest notice is sufficient warning of that theory of liability to support the later addition of a false imprisonment charge. See, e.g., Ismail v. Cohen, 706 F. Supp. 243, 250 (S.D.N.Y. 1989) (holding that defendants were on notice that claims included abuse of process negligence, and IIED, where Notice of Claim set forth factual basis for the claims but did not specify those causes of action). There is no requirement in § 50-e that punitive damages be specifically enumerated in the Notice of Claim. See N.Y. Gen. Mun. L. § 50-e2(4) (requiring claimant to set forth "the items of damage or injuries claimed to have been sustained so far as then practicable but a notice with respect to a claim against a municipal corporation other than a city with a population of one million or more persons shall not state the amount of damages to which the claimant deems himself entitled").
Punitive damages are not available against a municipality for § 1983 claims. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981).
Finally, § 50-e(1)(b) of the Municipal Law specifically provides that individual officers need not be served with Notices of Claims to satisfy the notice requirement. N.Y. Gen. Mun. L. § 50(e)(1)(b) ("Service of the notice of claim upon an officer, appointee or employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person.").
Rocket's motion for summary judgment on the grounds of inadequate notice is denied.
C. Triable Issues of Fact Preclude a Finding of Qualified Immunity
The individual defendants seek summary judgment on the state and § 1983 excessive force, false imprisonment, and false arrest claims on the grounds of qualified immunity. See Calamia v. City of New York, 879 F.2d 1025, 1035-36 (2d Cir. 1989) (holding that qualified immunity applies to both state law and section 1983 claims). Qualified immunity insulates a police officer from liability for civil rights violations committed in the course of duty if (1) the officer believed in good faith that his conduct was lawful; and (2) it was objectively reasonable for him to believe that his actions did not violate an arrestee's rights in light of clearly established law and the information available to the officer at the time of the arrest. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034 (1987); Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) ("The objective reasonableness test is met if `officers of reasonable competence could disagree' on the legality of the defendant's actions.") (citation omitted). An officer's actions will be found objectively unreasonable, and summary judgment will be denied only if "no officer of reasonable competence could have made the same choice in similar circumstances." Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995).
An arresting officer is entitled to qualified immunity from a claim for unlawful arrest and false imprisonment if "either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995) (quoting Wachtler v. County of Herkimer, 35 F.3d 77, 80 (2d Cir. 1994).
Probable cause exists when officers "have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Posr v. Court Officers Shield #207, 180 F.3d 409, 414 (2d Cir. 1999) (quoting Weyant v. Okst, 101 F.3 845, 852 (2d Cir. 1996)). The test for probable cause is objective; the officer's subjective belief at the time of arrest is irrelevant. See, e.g., Martinez v. Simonetti, 202 F.2d 625, 633 (2d Cir. 2000) (citing Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1700, 143 L.Ed.2d 818 (1999)).
This "route to exoneration . . . has its principal focus on the particular facts of the case" and can lead to summary judgment if the defendant "adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant" to believe that he acted in violation of an established federally protected right. Robinson v. Via, 821 F.3d 913, 921 (2d Cir. 1987) (quoting Halperin v. Kissinger, 807 F.2d 180, 189 (D.C. Cir. 1986) (Scalia, J., sitting by designation)).
Viewing the evidence presented in the light most favorable to the nonmoving party, a jury could find that there was no probable cause to arrest Kirk for the Zaro's incident at the time he was handcuffed because the only link between him and the incident was his description, which matched that of many others in the area; that he did not resist arrest or take any other action giving rise to probable cause; and that Rocket and the MTA manufactured the criminal assault charge solely in retaliation for the filing of the notice of claim that was a precursor to this civil action. Alternatively, a reasonable jury could also credit the allegations that Kirk was unresponsive to direct questioning, resisted a protective pat-down, and was physically aggressive in the context of an investigation of a complaint involving a firearm.
Because the material facts of the interaction between Kirk and Rocket in the Mechanical Desk Office are in such "serious dispute," it is premature to decide whether probable cause existed to arrest Kirk or whether the actions of the officers were objectively reasonable. Lennon, 66 F.3d at 421 ("Disputes over reasonableness are usually fact questions for juries.") (quoting Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied, 498 U.S. 967, 111 S.Ct. 431, 112 L.Ed.2d 414 (1990)). As factual questions must not be resolved in a summary judgment motion, the question of qualified immunity is a triable issue that must be left for the jury to answer.
D. Respondent Superior Liability of the MTA on Common Law Claims
A municipal entity such as the MTA may be liable for the acts of its police officer in violation of state law under a respondent superior theory if the plaintiff can show that the officer was acting "`in furtherance of the duties he owes to his employer'" and that "`the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities.'" Woo v. City of New York, 1996 WL 457337 at *11 (quoting Perez v. City of New York, 94 Civ. 2061, 1996 WL 103836 at *2 (S.D.N.Y. 1996) (citing Lundberg v. State of New York, 25 N.Y.2d 467, 470, 306 N.Y.S.2d 947, 950 (1969))).
Defendants argue that respondent superior liability does not apply to railroad police, but cite no New York or Second Circuit cases to support this proposition. (Def. Br. at 18-19.) In fact, courts of this Circuit recognize that "[u]nder the common law, unlike § 1983, a municipality may be held liable for common law false arrest and malicious prosecution on a theory of respondent superior." Chimurenga v. City of New York, 45 F. Supp.2d 337, 344 (S.D.N.Y. 1999) (citing Johnson v. Town of Colonie, 102 A.D.2d 925, 926, 477 N.Y.S.2d 513, 514 (1984)); see also Buck v. Zwelling, 272 A.D.2d 895 (N.Y.App.Div. 2000) (holding that "[a]n employer may be held liable under the doctrine of respondent superior for intentional torts.").
The relevant test is "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." Ierardi v. Cisco, 119 F.3d 183, 187 (2d Cir. 1997) (quoting Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 302, 391 N.E.2d 1278, 1281 (1979) (internal quotations omitted)). In addition, a factfinder may also consider: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated. . . . Riviello, 47 N.Y.2d at 303 (citing Restatement of Agency 2d § 229).
As Rocket was clearly acting pursuant to his police duties by investigating the incident at Zaro's Bread Shop when he encountered Kirk in a common exercise of police duties, the common law causes of action against the MTA may be sustained under a respondent superior theory. See Chimurenga, 45 F. Supp.2d at 344.
E. Summary Judgment is Granted for the Defendants on the Intentional Infliction of Emotional Distress Claim
New York law provides that a cause of action for intentional infliction of emotional distress ("IIED") consists of four elements:
(1) extreme and outrageous conduct;
(2) the intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress;
(3) a causal connection between the conduct and the injury; and
(4) severe emotional distress.
Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999); See Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353, 612 N.E.2d 699, 702 (1993). Conduct that is sufficiently egregious to support such a claim is "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [society].'" Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (1983) (quoting Restatement of Torts, Second, § 46 cmt. d (1965)).
Whether the act is sufficiently outrageous is for the court to determine in the first instance. Howell, 81 N.Y.2d at 121, 596 N.Y.S.2d 350, 612 N.E.2d 699.
Claims for intentional infliction of emotional distress must be dismissed where, as here, the conduct underlying the claim may be redressed by way of traditional tort remedies such as battery, false arrest, and malicious prosecution. See Naccarato v. Scarselli, 124 F. Supp.2d 36, 44 n. 5 (N.D.N.Y. 2000); EEOC v. Die Fliedermaus, L.L.C., 77 F. Supp.2d 460, 472 (S.D.N.Y. 1999); Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 993, 373 N.E.2d 1215 (1978).
Kirk alleges that false accusations of crime and threats of prosecution suffice to state an IIED claim under New York law, but the cases they cite do not involve police officer defendants committing acts within the scope of their duties. See Kaminski v. UPS, 120 A.D.2d 409, 501, N.Y.S.2d 871 (N.Y.App.Div. 1986) (UPS supervisors' threaten to prosecute driver for crime based upon erroneous eyewitness identification, and driver forced to resign); Halperin v. Salvan, 117 A.D.2d 544, 499 N.Y.S.2d 55 (N.Y.App.Div. 1986) (IIED claim upheld against plaintiff alleging fraud in complaint). Although the acts Rocket is alleged to have committed certainly crossed the line of acceptable police practice, as fairly typical examples of excessive force, they do not rise to the level of "outrageous" such as to support an IIED claim. Cf. Bender v. City of New York, 78 F.3d 787, 790-92 (2d Cir. 1996) (noting that police officer's sadistic threat to incarcerate plaintiff and put her "through the system," after biting incident, might be sufficiently outrageous to support IIED claim).
The harm Kirk suffered as a result of the acts alleged — even those as a result of his claimed status as an "eggshell plaintiff" — may be remedied adequately by way of his other tort claims. The acts alleged are not sufficiently outrageous to warrant recovery under a theory of intentional infliction of emotional distress.
The defendants' motions for summary judgment are granted as to the intentional infliction of emotional distress claim.
F. Section 1983 and State Law False Arrest and False Imprisonment Claims
Because Anderson merely followed Rocket as he arrested Kirk and put him into detention, rather than actively taking part in Kirk's confinement, the claims against Anderson for false arrest and false imprisonment are dismissed.
State law claims for false arrest and false imprisonment are substantially identical to a constitutional false arrest and false imprisonment claims pursuant to § 1983 predicated on a violation of the Fourth Amendment. Okst, 101 F.3 at 852. False arrest is a type of false imprisonment; the two claims have identical elements. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).
The elements of false arrest and false imprisonment are (1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. Okst, 101 F.3d at 853; Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, cert. denied, 432 U.S. 929 (1975). At issue here is the fourth element.
The existence of probable cause to arrest the plaintiff is a complete defense to federal and state law claims for false arrest and false imprisonment. Okst, 101 F.3d at 852. However, as set forth above, the existence of probable cause is the subject of serious dispute. Therefore, it cannot be said at this time that the confinement was privileged, and summary judgment is inappropriate on the false arrest and false imprisonment claims. See, e.g., Naccarato v. Scarselli, 124 F. Supp.2d 36, 42 (N.D.N.Y. 2000) (denying summary judgment on false arrest and false imprisonment claims because probable cause determination depended on resolution of material factual dispute).
G. Section 1983 and State Law Claim for Excessive Force, and State Law Assault and Battery Claims
As an initial matter, the excessive force, assault and battery claims against Anderson are dismissed because Kirk does not allege that anyone other than Rocket had physical contact with him or was in a position to inspire a reasonable apprehension thereof.
1. Assault and Battery The elements of assault and battery by police officers are identical to the elements of excessive force under 42 U.S.C. § 1983. See, e.g., Posr v. Doherty, 944 F.2d 91, 94-95, 96, 100 (2d Cir. 1991) (pairing federal excessive force claim with New York state assault and battery claim, and federal unlawful arrest with state false arrest as "appropriate since, except for section 1983's requirement that the tort be committed under color of state law, the essential elements of the two claims in each pair were substantially identical"); accord, e.g., Singer v. Fulton County Sheriff, 63 F.3d 110, 114 (2d Cir. 1995), cert. denied, 116 S.Ct. 1676 (1996).
Therefore, in order to withstand summary judgment, a plaintiff pleading assault must allege facts that support a finding that the defendant intentionally placed the plaintiff in reasonable fear of imminent harmful or offensive bodily contact. See United Nat. Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993). To sustain a battery claim, a plaintiff must introduce evidence tending to show that the defendant intentionally and wrongfully engaged in physical contact with the plaintiff without the plaintiff's consent. See id.
Taken in the light most favorable to the nonmoving party, the facts alleged support the claim that Rocket's aggressive actions inspired a reasonable apprehension of offensive contact, and did in fact result in a battery. Moreover, the inability to determine probable cause due to the disputed material facts also requires that summary judgment on these grounds be denied. See, e.g., Sulkowska v. Safir, No. 99 Civ. 4228(AGS), 2000 WL 1568319, *5 (S.D.N.Y. Oct. 20, 2000) (finding that disputed material facts concerning existence of probable cause precluded summary judgment on claims for assault and battery, which derived from false arrest and false imprisonment claims).
2. Excessive Force in Violation of § 1983
For such claims to rise to the level of constitutional violations cognizable pursuant to § 1983, the plaintiff must show that the force use was "objectively unreasonable" under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Whether an officer's actions were reasonable depends on a fact-intensive inquiry considering the circumstances of the particular case, including the severity of the crime being investigated, whether the suspect poses an immediate threat to the safety of the officer or others, and whether the suspect is actively resisting arrest or attempting to flee. Id., 490 U.S. at 396-97.
In addition, in order to sustain a claim for the constitutional tort of use of excessive force, a plaintiff must show that the officer intended to use force. O'Neill v. Krzeminski, 839 F.2d 9, 11 n. 1 (2d Cir. 1988). Toward that end, a plaintiff may introduce evidence to show that the complained of conduct was committed with actual malice in order to make out the element of intent. Id.
The defendants argue that Rocket's behavior was not objectively unreasonable under the circumstances because he prudently followed up on a tip involving the possibility of an armed suspect, Kirk had "demonstrated noncompliance" with an attempted pat-down, and these factors, taken together, constituted "exigent circumstances" warranting Rocket's handcuffing Kirk and leading him up the stairs.
However, as discussed above, triable issues of fact exist as to whether there was probable cause to believe Kirk was the Zaro's suspect, or whether he was armed. Moreover, defendants' construction of the circumstances as "exigent" is an inapt and improper exaggeration where an unarmed suspect was cornered by three officers inside a small office, and there was no need to undertake extraordinary measures in order to preserve evidence or ensure the officers' safety. See generally United States v. Gallo-Roman, 816 F.2d 76, 79 (2d Cir. 1987) (surveying cases finding circumstances sufficiently exigent to justify making an exception to the search warrant requirement, including hot pursuit of a fleeing felon, destruction of evidence, and ongoing fire).
Given the material discrepancy between the factual allegations of the parties, it is "simply not possible to say that the defendants' use of force was reasonable under the circumstances." Black v. Reno, No. 99 CIV. 2704 (RWS), 2000 WL 37991, at *43 (S.D.N.Y. Jan. 18, 2000). Summary judgment as to the excessive force claim is denied.
H. The Sixth and Seventh Causes of Action:
Negligence and Negligent Infliction of Emotional Distress
1. Rocket and Anderson
The hallmark of negligence — whether in the form of simple negligence or negligent infliction of emotional distress — is that the act complained of was not committed with any specific intent, but was rather the result of a breach of a duty of care.
As such, negligence claims cannot coexist with claims for intentional torts such as those asserted here, assault, battery, and intentional infliction of emotional distress. See United National Insurance Co. v. Tunel, Inc., 988 F.2d 351, 353 (2d Cir. 1993) (recognizing "the mutual exclusivity of negligence and battery."); Mazzaferro v. Albany Motel Enter., Inc., 515 N.Y.S.2d 631, 632-33 (2d Dep't 1987) ("New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently.").
The facts alleged support a theory that Rocket and Anderson intentionally and wrongfully injured Kirk during the course of a wrongful arrest. Moreover, the sixth and seventh counts of the amended complaint plead that the defendants had specific intent — that they acted "malicious[ly] and with the desire to cause injury and harm to plaintiff Preston Kirk." (Amd. Compl. ¶¶ 100-104, 111-115). Therefore, the negligence claims will be dismissed as to Rocket and Anderson. See, e.g., United Calvary Church v. City of New York, No. 96 Civ. 4606 (RPP), 2000 WL 1745048, *12 (S.D.N.Y. Nov. 28, 2000) (granting summary judgment on negligence and negligent infliction of emotional distress claims because the evidence established intentional conduct for assault and battery rather than negligence).
2. The MTA a. State Law The only negligence claim that Kirk defends in his brief opposing defendants' summary judgment motion is that the MTA negligently hired, supervised, trained and retained Rocket and Anderson. (Amd. Compl. ¶ 99, 110; Pltf. Br. at 33-34.) Such a claim is cognizable under state law and § 1983 where, as here, a plaintiff alleges that he has been injured as a result of the negligent training and supervision of a law enforcement officer. See Barr v. County of Albany, 50 N.Y.2d 247, 257, 428 N.Y.S.2d 665, 670, 406 N.E.2d 481, 485 (1980). Government employers, like any other employers, have a duty to use reasonable care and refrain from knowingly retaining an officer with known dangerous propensities in a position that would present a foreseeable risk of harm to others. See, e.g., Abdullajeva v. Club Quarters, Inc., No. 96 CIV. 0383 (LMM), 1996 WL 479029, *9 (S.D.N.Y. Sept. 3, 1996); Haddock v. City of New York, 532 N.Y.S.2d 379, 380 (N.Y.App.Div. 1988) (applying rule to government employers), aff'd, 75 N.Y.2d 478, 553 N.E.2d 987, 554 N.Y.S.2d 439 (N.Y. 1990).
An essential element of this claim is that the MTA knew of its officers' violent tendencies and failed to act to mitigate them before the plaintiff was injured. See Haybeck v. Prodigy Serv. Co., 944 F. Supp. 326, 332 (S.D.N.Y. 1996) (dismissing claims for negligent hiring and retention because plaintiff failed to allege that defendant knew about employee's tortious conduct).
Kirk has asserted that the MTA had such knowledge in the form of pre-hiring psychological evaluations of Rocket that suggested he was unduly suspicious of others and likely to overreact to conflict, and that the MTA failed to further evaluate Rocket or to train him to overcome these tendencies before hiring him in 1991, or, more importantly, before rehiring him after new evaluations revealed the same propensities in 1994. (Pltf. Br. at 3; Kirk Exs. 7, 8.) Kirk also offers the case of Patrick Smith, an individual who received serious injuries after an altercation during an arrest by Rocket in Grand Central Station on June 20, 1996, two years before the incident involving Kirk, as further evidence of both Rocket's dangerousness and the MTA's failure to supervise and train him consonant with its duty of care. (Pltf. Br. at 4.) Rocket has admitted that he would have cooperated with the MTA if it had suggested counseling, training or treatment, but was never made aware of the psychological findings or the recommendation that he be evaluated further. (Kirk Ex. 9 at 49-50, 106.) Finally, Kirk argues that his injury was the foreseeable result of the MTA's inaction. (Pltf. Br. at 33.)
Smith's state law and § 1983 action against Rocket and the MTA is pending before this Court. See Smith v. Metro North, No. 98 Civ. 2528 (RWS).
This proffered evidence is sufficient to create a genuine issue of material fact as to whether the MTA knew of Rocket's instability and negligently hired, supervised, trained and retained him. As the MTA received timely notice of this claim, (see Rocket Ex. A), summary judgment is denied as to the MTA's training and supervision of Rocket. Leave is granted to amend the complaint to reflect the factual predicate and elements of this claim as set forth in the proposed second amended complaint. (Kirk Ex. F.)
However, no evidence has been presented to support the claim that the MTA ignored evidence that Anderson was in need of close supervision — or indeed that any such evidence exists.
Summary judgment is granted on the issue of Anderson's training, no triable issue of fact having been created. b. Section 1983 Failure to Train
In order to state a claim for municipal failure to train pursuant to § 1983, a plaintiff must allege a link between the violation of his constitutional rights and municipal policy or custom. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 1203 (1989); Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2037-38 (1978). Such a policy or custom need not be explicit, but may be inferred circumstantially by a showing "deliberate indifference" by one of two methods:
(1) the MTA and its supervisory officials made a "deliberate choice" not to fully train its employees despite an obvious need for training in light of the inadequacy thereof and the likelihood of violation of constitutional rights, see City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989); or
(2) the MTA and its supervisory officials "knew about a pattern of constitutionally offensive acts by their subordinates and failed to take remedial action in response thereto" such that they were deliberately indifferent, Watkins v. City of Buffalo, No. 95-CV-0816E SC, 1999 WL 1068239, at *3 (W.D.N.Y. Nov. 12, 1999). See also Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) ("The inference that such a policy existed may arise from `circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'") (quoting Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) ("[M]unicipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell.")
To establish deliberate indifference, Kirk must present evidence of three elements: (1) that the MTA policymakers knew "to a moral certainty" that its employees will encounter a given situation, Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992) (quoting Canton, at n. 10); (2) that the situation would either present the kind of difficult decision for an employee that training or supervision would ameliorate, or a history of employees mishandling the situation; and (3) a deprivation of a citizen's constitutional rights will frequently result from an employee's mishandling of the situation. Walker, 974 F.2d at 297-98. "Deliberate indifference" constitutes more than "simple or even heightened negligence"; it involves a "conscious disregard" on the part of municipal employees for the consequences of their actions. Board of the County Com'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1390, 137 L.Ed.2d 626 (1997).
Although these elements are not alleged in the amended complaint, the proposed second amended complaint alleges these elements with particularity based upon the discovery produced to date. (Kirk Ex. H ¶¶ 60-83, 84-91, 92-100, 153-158.) In particular, the proposed second amended complaint alleges, inter alia, that: MTA policymakers knew that its police officers would have to investigate complaints and make arrests; given his psychological profile and prior incidents with civilians, Rocket would overreact in the course of his duties, thereby depriving citizens of constitutional rights; rather than training him in penal law and arrest procedures or increasing his supervision after the Smith incident, MTA officials conducted a "whitewash" IAD investigation which exonerated Rocket, which left the problem unaddressed and resulted in Kirk's injuries. (Id.)
The defendants oppose the amendment of the complaint on the grounds of prejudice and undue delay, and argue that the requisite link between MTA custom or policy and Kirk's injuries has not been met. In order to establish the requisite link at the summary judgment stage, a plaintiff need only allege facts at least circumstantially tending to support the inference that the municipal custom of indifference existed. Dwares, 985 F.3d at 100.
See infra for discussion of legal standard for amending complaints.
Kirk has presented deposition evidence from Rocket proving that he received no follow-up on the MTA's psychological reports and or any special counseling or anger management therapy after the incident with Patrick Smith, and that he had fundamental misconceptions regarding his authority to arrest under the Penal Law. (Kirk Ex. 9 at 72-73, 99-100, 108.)
In Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986), the Second Circuit held that knowledge of prior allegations of excessive force against municipal officers and the city's investigations of the claims "were pertinent," despite "[t]he fact that none of the claims had yet been adjudicated in favor of the claimant. . . [I]f the City's efforts to evaluate the claims were so superficial as to suggest that its official attitude was one of indifference to the truth of the claim, such an attitude would bespeak an indifference to the rights asserted in those claims." 783 F.2d at 328. Thus, Smith's allegations and the MTA's response to them are relevant to Kirk's case, although the Smith case has not yet been resolved.
Taken together, these three occasions on which MTA officials were made aware of the likelihood that Rocket was acting unduly aggressively yet took no action — the 1991 evaluation, the 1994 evaluation, and the complaints regarding the incident with Smith — are sufficient to allege a custom or policy of inaction. See, e.g., Powell v. Gardner, 891 F .2d 1039, 1045 (2d Cir. 1989) ("evidence that the municipality repeatedly failed to make any meaningful investigation into charges that police officers had used excessive force in violation of the complainants' civil rights" is sufficient to state a claim for municipal liability pursuant to § 1983).
Summary judgment is denied on the § 1983 failure to train claim against the MTA, and leave is granted pursuant to Fed.R.Civ.P. 15 to amend the complaint to plead it more fully, as set forth in Count XVII of the proposed second amended complaint.
I. Genuine Issues of Fact Preclude Summary Judgment on the Eighth and Ninth Causes of Action, 42 U.S.C. § 1983 and State Law Malicious Prosecution, as to Rocket and the MTA
The elements of malicious prosecution under both 42 U.S.C. § 1983 and state law are:
(1) the initiation and continuation of a criminal proceeding by the defendant against the plaintiff;
(2) lack of probable cause for commencing the criminal proceeding;
(3) actual malice; and
(4) the termination of the proceeding in favor of the accused. Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994); Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195, 712 N.Y.S.2d 438 (2000). Plaintiffs bringing § 1983 malicious prosecution claims must also demonstrate a fifth element, the existence of a post-arraignment deprivation of liberty rising to the level of a Fourth Amendment violation. Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality); Singer v. Fulton County Sheriff, 63 F.2d 110, 116 (2d Cir. 1995).
As discussed above, there is a triable issue of fact as to whether probable cause existed for the arrest of Kirk and as to whether actual malice motivated the initiation of criminal proceedings. See Chimurenga v. City of New York, 45 F. Supp.2d 337, 344 (S.D.N.Y. 1999) (finding that triable issue of fact necessarily existed as to malice where jury could find that probable cause was lacking).
However, defendants correctly argue that both the state and federal malicious prosecution claims against Anderson must be dismissed because his role in commencing the criminal proceeding against Kirk was de minimis. In order to satisfy the first element of malicious prosecution, a plaintiff must show that the defendant in question either initiated charges or played an active role in facilitating the filing by others. See Ricciuti v. N YC. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). Anderson neither swore to a complaint to initiate the charges nor played an relevant role in the continuation of criminal proceedings. As such, it cannot be said that he "initiated and continued a criminal proceeding" against Kirk. On the other hand, Rocket filed the complaint and Inspector Masciana of the MTA contacted the prosecutor to urge that the charges be pursued, satisfying the first element as to the remaining defendants.
Next, the defendants contend that summary judgment is appropriate as to Rocket and the MTA because Kirk was neither found not guilty after trial nor detained after his arraignment.
However, the motion must fail because triable issues of fact exist as to both the favorable termination and post-arraignment deprivation factors.
An accused need not win an acquittal after trial in order to receive a favorable termination. The New York Court of Appeals recently held that "[a] dismissal without prejudice qualifies as a final, favorable termination if the dismissal represents `the formal abandonment of the proceedings by the public prosecutor'" Smith-Hunter, 95 N.Y.2d at 198 (citation omitted). In assessing whether a termination was "favorable," the Court of Appeals rejected the notion that an affirmative indication of innocence was necessary, and instead established a standard that assessed whether the termination was "inconsistent with innocence." Id. at 199.
Applying that rule, the Smith-Hunter court held that a speedy trial dismissal was "favorable" for the purposes of a subsequent malicious prosecution action.
Kirk's case was dismissed upon the prosecutor's motion on the grounds that "the charges cannot be proved beyond a reasonable doubt." (MTA Ex. DD at 2.) Even more than a speedy trial dismissal, this disposition is not "inconsistent with innocence," and therefore satisfies the fourth element of Kirk's state law malicious prosecution claim. See Chimurenga, 45 F. Supp.2d at 343 (finding triable issue of fact raised by the possibility that government's motion to dismiss based upon plaintiff's background and a review of the facts was indicative of innocence).
Therefore, a triable issue of fact exists as to Kirk's state law malicious prosecution claim against Rocket and the MTA, and Kirk's motion must be denied. Summary judgment is granted for Anderson on both the state and § 1983 malicious prosecution claims.
The fifth element of the federal malicious prosecution action, post-arraignment deprivation, has also been met despite the fact that Kirk was not detained or required to post bail, because "[t]he liberty deprivations regulated by the Fourth Amendment are not limited to physical detention." Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir. 1997). Rather, as Justice Ginsburg has recognized, a criminal defendant who is not detained before trial: is scarcely at liberty; he remains apprehended, arrested in his movements, indeed `seized' for trial, so long as he is bound to appear in court and answer the state's charges. . . . A person facing serious criminal charges is hardly freed from the state's control upon his release from a police officer's physical grip. He is required to appear in court at the state's command. . . . Albright, 510 U.S. at 279, 114 S.Ct. at 815 (Ginsburg, J., concurring)). Although Kirk's ability to travel out of the jurisdiction was not restricted when he was released on his own recognizance, the fact that he was required to appear in court on at least three occasions or face the issuance of a bench warrant rendered him effectively seized because he was "subject[ed] . . . to restraints not shared by the public generally." Murphy, 118 F.3d at 945 (quoting Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 301, 104 S.Ct. 1805, 1809-10, 80 L.Ed.2d 311 (1984)). See also Sassower v. City of White Plains, 992 F. Supp. 652, 655 (S.D.N.Y. 1998) (holding pursuant to Murphy that requirement of three court appearances without restriction on ability to travel satisfied post-arraignment deprivation element of malicious prosecution); Martinez v. Gayson, No. 95-CV-3788 (ILG), 1998 WL 564385, *3 (E.D.N.Y. June 30, 1998) (denying judgment as a matter of law on malicious prosecution claim where only post-arraignment liberty deprivation was requirement to attend trial).
See Zelma Decl. ¶¶ 11, 12, 15; Kirk Aff. ¶¶ 57, 61, 66.
See Kirk Aff. ¶ 61.
Summary judgment is denied as to the § 1983 malicious prosecution action against Rocket and the MTA.
III. Leave to Amend
A. Legal Standard
Rule 15(b) of the Federal Rules of Civil Procedure provides that courts should "freely" grant leave to amend the pleadings to conform to the evidence "when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits." Fed.R.Civ.P. 15(b); see also Fed.R.Civ.P. 15(a) ("leave [to amend] shall be freely given when justice so requires.").
The Supreme Court has interpreted Rule 15 to permit such amendments only when (1) the party seeking the amendment has not unduly delayed, (2) when the party is not acting in bad faith or with a dilatory motive, (3) when the opposing party will not be unduly prejudiced by the amendment, and (4) when the amendment is not futile. See Hemphill v. Schott, 141 F.3d 412, 420 (2d Cir. 1998) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). An amendment is futile when it would be the subject of a successful motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). "Mere delay, . . . absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend." Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993) (quoting State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)).
Proposed amendments that "merely . . . make defective allegations more definite and precise" are more favored than those seeking to assert new claims. Siegel v. Converters Transp., Inc., 714 F.2d 213, 216 (2d Cir. 1983) (citation and internal quotations omitted). Defendants are already on notice of clarified pleadings of existing claims, unlike new claims, and will not delay trial by requiring further discovery.
Motions to amend are viewed less favorably when filed after discovery has been completed, and after summary judgment motions have been filed. Krumme v. Wespoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998). Nonetheless, amendments are not necessarily barred after summary judgment motions have been filed; important considerations include notice and whether the new claims arise out of the same set of operative facts as those asserted in the prior complaint. Compare Hanlin v. Mitchelson, 794 F.2d 834, 841 (2d Cir. 1986) (allowing amendment to add contract and negligence theories to malpractice complaint, where all claims arose out of the same set of operative facts) with Ansam Associates v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (holding amendment unduly prejudicial where plaintiff sought to assert new claims from different time period, pursuant to different statutes, and an entirely different set of operative facts of which the original complaint did not give notice).
B. Proposed Amendments
Kirk proposes to amend the complaint for a second time to incorporate factual allegations based upon evidence gained from the defendants during discovery, and to plead existing claims more fully. In addition, Kirk seeks to plead new § 1983 causes of action for: retaliation against protected speech; deprivation of Kirk's right to bring and maintain a lawsuit; deliberate indifference; and a variety of municipal custom and policy claims pleading violations of the First, Fourth, Fifth and Fourteenth Amendments of the Constitution.
The new claims enumerate the following grounds for municipal custom and policy liability against the MTA: "failing to utilize the results of psychological evaluations in its hiring, training, and supervision" (Count XIII); "covering up police misconduct through its internal affairs division" (Count XIV); "covering up police misconduct by withholding and suppressing evidence" (Count XV); and "Using economic and psychological coercion to prevent plaintiffs from bringing civil actions" (Count XVI).
Count XVII, "Failing to train its officers in the law," simply repleads the § 1983 failure to train cause of action set forth in the amended complaint. As discussed supra, the proposed repleading will be granted.
The defendants contend that Rule 15 should not be employed as a means of correcting deficient pleadings that were not corrected in the prior amendment. Furthermore, defendants claim undue delay and prejudice arising out of the additional expense they allege they will have to incur to respond to the amended causes of action. Finally, the defendants allege that adding new claims to the complaint at this stage would be futile because they cannot withstand a motion to dismiss.
C. The Motion to Amend Is Granted in Part and Denied in Part
1. Leave is Granted to Plead Facts Learned in Discovery in Support of Previously Asserted Claims As set forth above, the plaintiff may amend the complaint to plead facts learned in discovery that support previously noticed causes of action. See Tokio Marine Fire v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir. 1985) (allowing amendment where amended claim "was obviously one of the objects of discovery and related closely to the original claim. . . .") (citation and internal quotations omitted).
2. Leave is Granted to Replead Previously Asserted Causes of Action As the defendants had notice of the negligence and § 1983 failure to train claims and fully briefed a summary judgment motion thereon, Kirk may replead these causes of action against the MTA as set forth in his proposed second amended complaint. See Siegel, 714 F.2d at 216.
The § 1983 deliberate indifference claim (proposed Count XII) contains substantially similar legal elements and factual predicates as the failure to train cause of action, see supra.
Therefore, leave to amend the complaint to add an independent deliberate indifference claim is denied, although Kirk may amend his failure to train claim to include the required element of deliberate indifference as set forth above.
Similarly, leave to include Count XIII as an independent cause of action claiming failure to use psychological evaluations in the training and supervision of officers, will be denied as duplicative, as that claim merely sets forth one example of the deliberate indifference in the failure to train claim.
3. No New Causes of Action May Be Added Proposed counts X, XI, XV and XVI § 1983 claims alleging retaliation for Kirk's exercise of protected speech and interference with his "right to bring and maintain a suit" by means of intimidation and coverups were not foreshadowed by the prior complaints. As such, the addition of these claims would unduly prejudice the defendants by causing additional expense and delay in the proceedings.
Moreover, amending the complaint to include these three claims would be futile. Kirk relies heavily on the fact that this Court recently upheld a first amendment retaliation claim against Rocket upon a motion to dismiss in Smith v. Metro-North, No. 98 Civ. 2528 (RWS), 2000 WL 1449865, *6 (S.D.N.Y. Sept. 29, 2000).
However, the facts in that case demonstrated the causal link between the plaintiff's speech and Rocket's actions that is required to sustain a First Amendment claim for retaliation.
Another Metro-North police officer had already asked Smith to exit the train, which he was in the process of doing when he encountered Rocket and asked him why he was being thrown off, which, according to the complaint, led Rocket to strike him. See id. at *5-6. As there was no other interaction between Rocket and Smith other than his question before the incident, the retaliation claim was upheld. Id.
Here, in contrast, the evidence demonstrates that Rocket had asked Kirk repeatedly to approach him before Kirk complied.
There is no indication from any of the accounts that Kirk's asking why he had been asked to approach Rocket played any role in Rocket's decision to handcuff and prosecute him. See supra.
Finally, the allegation in the proposed second amended complaint that Rocket "roughly, aggressively and violently str[uck]" Kirk "without any cause, provocation or resistance by plaintiff" is in conflict with the retaliation claim. (Kirk Ex. 1 ¶ 23.) For all the foregoing reasons, the motion to amend the complaint to include a first amendment retaliation claim is denied.
The motion to add the Counts XI, XIV, XV and XVI, alleging interference with Kirk's right of access to the courts, is similarly futile. In order to sustain such a claim, a plaintiff must establish that (1) the defendants acted under color of state law to interfere with the plaintiff's right of access to the courts; and (2) he has suffered or will imminently suffer actual harm. See Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 2180-81, 135 L.Ed.2d 606 (1995); Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997) (describing actual injury in non-prisoner context as defendants' taking or being "responsible for actions that hindered [a plaintiff's] efforts to pursue a legal claim") (citation and internal quotations omitted)), cert. denied, 525 U.S. 823, 119 S.Ct. 66, 142 L.Ed.2d 52 (1998). An unconstitutional deprivation of the right of access to courts takes places "when government officials thwart vindication of a claim by violating basic principles that enable civil claimants to assert their rights effectively." Barrett v. United States, 798 F.2d 565, 575 (2d Cir. 1986).
The facts Kirk alleges in support of his right of access claims do not plead a constitutional violation. The "economic and psychological" coercion Kirk alleges of the IAD investigation does not create a cognizable cause of action. As the Second Circuit has held, "to suggest that rude and inconsiderate treatment of complainants before an administrative tribunal is prohibited by the First Amendment is to trivialize the significance of the right to petition the government, making of the Constitution `a font of tort law,' and converting federal courts `into small-claims tribunals.'" Batista v. Rodriguez, 702 F.2d 393, 398 (2d Cir. 1983).
Moreover, the civil right of access to courts to redress constitutional violations does not limit the government's ability to initiate or terminate prosecutions, or to propose settlements to resolve litigation. See Kittay v. Giuliani, 112 F. Supp.2d 342, 354 (S.D.N.Y. 2000) (citing Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271, 285, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984)). Filing of Rocket's counterclaim was his right under the Federal Rules, and in no way impeded, delayed, or blocked Kirk's pursuit of this action. See Venable v. Keever, 61 F. Supp.2d 552, 560 (N.D.Tex. 1999) (filing a counterclaim does not constitute violation of plaintiff's right of access to courts where counterclaim neither delays nor blocks plaintiff's lawsuit). and failure to train claims. See, e.g., Scholastic, Inc. v. Stouffer, 124 F. Supp.2d 836, 852 (S.D.N Y 2000) (dismissing duplicative claims).
These claims are also subject to dismissal as duplicative of the false arrest, false imprisonment, malicious prosecution,
Finally, the discovery dispute regarding Rocket's 1991 psychological evaluation dubbed a "cover up," defendants' alleged "fabrication" of an assault charge and counterclaim did not result in the destruction of evidence, impede or delay the prosecution of this action, or diminish the value of Kirk's claims. See Cefalu v. Village of Elk Grove, 211 F.3d 416, 422 (7th Cir. 2000); Swekel v. City of River Rouge, 119 F.3d 1259, 1263-64 (6th Cir. 1997) (plaintiff must "[show] that the defendants' actions foreclosed her from filing suit in state court or rendered ineffective any state court remedy she previously may have had"); Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir. 1998) (same); Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983) (cover up leading to eleven month delay in release of facts regarding murder violated victim's parents' right of access to courts); cf. Harbury v. Deutch, 233 F.3d 596, 609 (D.C. Cir. 2000) (overturning district court's dismissal of access to courts claim where government's feigned cooperation and concealing of essential facts regarding CIA's involvement in detention and torture of claimant's husband in Guatemala delayed her filing until United States intervention was too late because he had already died); Barrett, 798 F.2d 565 (refusing to dismiss access to courts claim upon showing that government withheld evidence of army's involvement in treating psychiatric patient with mescaline in secret testing of possible chemical warfare agent that led to his death, where suppression of army's role reduced value of wrongful death action by approximately $60,000).
In sum, even if Kirk's allegations in these counts are true, the defendants' actions did not "thwart vindication of [Kirk's] claim." Barrett, 798 F.2d at 575. The motion to include these new causes of action in the proposed amended complaint is denied.
Conclusion For the aforementioned reasons, the summary judgment motions of Rocket and the MTA are granted in part and denied in part, Anderson's summary judgment motion is granted in full, and the plaintiff is granted leave to file a second amended complaint in accordance with this opinion.
It is so ordered.